Court Information

DATE: 2022-12-19 Toronto ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

ASHTON GRAY

Before: Justice M. Greene

Reasons for judgment Released: December 19, 2022

Counsel: B. Willetts……………………………………………………………………………….for the Crown Ms. Gray ………….………….…………………………………………………….……for Ms. Gray S. Chowdry…………………………………..………………………………………….amicus

M. Greene J.:

Introduction

[1] Ashton Gray is charged with two counts of mischief and one count of assault police in relation to events that took place on July 14, 2022 at Nathan Phillips Square in Toronto. Ms. Gray has largely admitted to committing the offences but argues that a stay of proceedings is required as a remedy for a breach of her section 7 rights. Ms. Gray alleges that the police used excessive force at the time of her arrest and later while she was at the hospital. Crown counsel argued that while the officers conduct may not have been perfect, it was not excessive. She argued that there was no breach of Ms. Gray’s section 7 Charter rights. In the alternative, she argued that if I find a breach, a stay of proceedings is not the appropriate remedy.

[2] On December 12, 2022 I advised all parties that it was my view that the police violated Ms. Gray’s Charter rights by assaulting her and that the appropriate remedy is a stay of proceedings. I indicated that I would provide my written reasons at a later date.

Summary of the evidence

[3] On July 12, 2022, Baycrest Hospital organized an art installation display at Nathan Phillips Square. Thirteen statues of brains were displayed in the water of the ornamental pool in the Square. Each statute was in a display case with information about the art piece. The statues were listed for sale with the proceeds going to Baycrest.

[4] On July 14, 2022, Ms. Gray was seen by a security officer at Nathan Phillips Square pushing over a single display case, which then knocked over approximately one dozen other display cases. Ms. Gray then proceeded to smash the fallen display cases. She then took one brain sculpture and carried it into the middle of the pool where she continued to yell. She also had another sharp object in her hand which ended up being a paint scraper. Ms. Gray was then seen throwing things in the pool in various directions. The entire event was captured on video and played at trial.

[5] Mr. Rusak, a security guard with the city of Toronto called police and asked for an MCMT team to attend because in his mind, Ms. Gray appeared to be in crisis.

[6] Three officers testified at trial and on the Charter application. Officer Gagnon, Officer Paulini and Officer Jagdeo. Each officer had a body worn camera that recorded most of the events. It appears that the officers’ cameras captured what took place at Nathan Phillips Square and this was played at trial. For reasons not explained at trial, only officer Jagdeo’s body worn camera was played depicting what took place later at the hospital, even though a number of officers were present at hospital with Ms. Gray.

[7] According to the witnesses and the videos of the event, Ms. Gray remained in the decorative pool at Nathan Phillips Square for an extended period of time. Officers arrived on scene and attempted to engage with Ms. Gray, but she was largely nonresponsive,

[8] After an extended period of time, the officers decided to take off their socks and shoes and enter the water so that Ms. Gray could be apprehended. Five officers entered the water. As soon as they moved towards Ms. Gray, she attempted to flee the area but ran into a security guard. This slowed her down enough for the police to apprehend her.

[9] Three to five officers then worked together to cuff and search Ms. Gray. The entire arrest and search was captured on video. It shows that at least three officers were securing Ms. Gray’s hands while she was face down on the ground and placed hand cuffs on her. Two officers then conducted a search of Ms. Gray while she was on the ground and moved her into different positions to properly search her bags and clothes. Ms. Grey was then placed in a standing position so that her backpack could be removed.

[10] Once the search was completed, Ms. Gray, with her hands cuffed behind her back, was placed on a stretcher. She was placed on her back with her handcuffed arms beneath her. The paramedics then strapped Ms. Gray into the stretcher so that her upper body and waist area were strapped to the stretcher.

[11] Ms. Gray was taken to an ambulance and placed inside with a paramedic and two officers. While in the ambulance, the paramedics were wearing medical masks, but the officers did not put on any masks to protect themselves against covid 19. One of the officials in the ambulance did attempt to put a plastic face shield on Ms. Gray. This clearly upset her and caused Ms. Gray to scream out and complain about it. As her hands were cuffed and her body was strapped down, the only mechanism she had to address the plastic face shield that was causing her discomfort was to shake her head excessively so that that the face shield fell off.

[12] Upon arrival at the hospital, Ms. Gray was removed from the ambulance. Officer Gagnon at this point attempted to read Ms. Gray her rights to counsel. Ms. Gray did not want to hear her rights and kept interrupting and arguing with the officer. Officer Gagnon, aware of her duty to inform Ms. Gray of her right to contact counsel continued to attempt to advise Ms. Gray of her rights using simple language. At this point Ms. Gray spat at Officer Gagnon. Officer Gagnon then advised Ms. Gray that she was also being charged with assault police officer.

[13] Officer Paulini was called by the Crown as part of her case and to address the Charter application alleging excessive force. Her body worn camera was played at trial. At the end of her evidence in chief, Crown counsel asked if she had any other involvement with Ms. Gray. Officer Paulini’s sole response was that she followed them to St. Mike’s hospital. She said nothing further about her interaction with Ms. Gray and Crown counsel chose to ask no further questions about what, if anything, took place at the hospital. Amicus also did not ask Officer Paulini any questions about what took place at hospital. The impression I was left with at the end of Officer Paulini’s evidence was that nothing of significance took place at hospital. This is because when asked about further contact with Ms. Gray, the sole response given by Officer Paulini was that she followed Ms. Gray and others to hospital.

[14] Ms. Gray elected to call evidence on the trial and on the Charter. The first witness called by Ms. Gray was Officer Jagdeo. Ms. Gray did not have many questions for this officer, she just wanted the video from his body worn camera to be played in court and made an exhibit. This was the only video played at trial that captured what took place at hospital. As this video captures Officer Paulini assaulting Ms. Gray in hospital, I will describe it in detail.

[15] The video begins with Ms. Gray being rolled into hospital, still strapped down and cuffed on a stretcher. Officer Paulini can be seen attempting to put the face shield back on Ms. Gray. Ms. Gray continues to move her head about so as to avoid the face shield being secured to her head. Officer Paulini then grabbed Ms. Gray’s shoulder and pushed her causing her head to hit a glass door. As she did this, Officer Paulini yelled “do not move”. Officer Paulini then can be heard saying “you spit again on anyone of us you are going to have problems do you understand”. While speaking, Officer Paulini was still pushing Ms. Gray’s shoulder causing Ms. Gray’s head to be pushed against the glass wall. Ms. Gray can be heard saying something back to the officer, but I am unable to make out what words were being uttered. Officer Paulini then pulled Ms. Gray’s shoulder back a bit, as though she was about to release her, and then shoved her shoulder hard back towards the glass wall, causing Ms. Gray’s head to hit the wall again. As she does this Officer Paulini was speaking. I can hear Officer Paulini say “don’t fuckin…: I could not hear the rest of what she said as she lowered her voice. Officer Paulini then walked away from Ms. Gray. As the officer walked away she conversed with other officers that were present. Ms. Gray can be heard in the background calling Officer Paulini a bitch. Officer Paulini is then heard saying to another officer “that was angry me”. As Officer Paulini says this, Ms. Gray can be heard in the background saying something but again I cannot make out the actual words. Officer Paulini then suddenly turned back to Ms. Gray and shoved her shoulder and by extension her head again against the wall. Officer Paulini continued to hold Ms. Gray’s head into the glass door for an extended period of time. Ms. Gray was not moving. Nonetheless after approximately five seconds, Officer Paulini grabbed Ms. Gray’s fingers. I can hear Ms. Gray complaining that it was hurting her fingers. Ms. Gray then called Officer Paulini a “fucking bitch”. In response, Officer Paulini said “do not fuck with me, do you understand? Keep your face to the wall”. Officer Paulini then continued to hold Ms. Gray and repeated do not move.

[16] Officer Jagdeo testified that in his opinion Officer Paulini was not using excessive force when she shoved Ms. Gray multiple times into the glass door.

[17] After this was played, Crown counsel asked to recall Officer Paulini so that she could give evidence about what was captured on the video. When asked why this was not addressed earlier, the Crown advised that she thought the motion was only about the arrest and not about what occurred at hospital. While the Crown had watched this video earlier on, it had been some time since she watched it and did not recall this portion of the video. Crown counsel made no mention as to whether this incident was included in Officer Paulini’s notes or if it was captured on Officer Paulini’s body worn camera.

[18] I allowed the Crown to recall the officer.

[19] Officer Paulini testified that the reason she pushed Ms. Gray into the wall was because it looked like and sounded like Ms. Gray was getting ready to spit at the officers again and she wanted to stop this. Pushing Ms. Gray’s face towards the wall was the only way to protect the officers and the public from Ms. Gray’s spitting as Ms. Gray refused to put on the face shield. Officer Paulini further testified that she did not use a lot of force when pushing Ms. Gray’s face to the wall, she used only the amount of force required to control her.

[20] In relation to the second series of pushes, Officer Paulini testified that even though her back was mostly to Ms. Gray, she was able to see Ms. Gray out of the corner of her eye. She stepped in because it looked to her like Ms. Gray was getting ready to spit again. Officer Paulini further testified that she grabbed Ms. Gray’s hand as a means of controlling her body. The amount of pressure used was less than what one would use during a handshake. While Crown counsel had played the video from Officer Paulini’s body worn camera from the arrest at trial, she did not play the video, if one even exists, of what took place at hospital.

[21] Ms. Gray testified on the Charter motion and on the trial proper. In relation to the excessive force issue, Ms. Gray testified that she could not breathe when the officers put the face shield on her. She also testified that Officer Paulini hurt her when she pushed her again the wall in the hospital multiple times and twisted her hand.

[22] With respect to the charges before the court, Ms. Gray admitted to damaging the brain sculptures and the display cases, but she did so because she though they were going to hurt her. Ms. Gray testified at length about her belief that they brains would harm her. Ms. Gray, in her evidence, admitted to spitting on Officer Gagnon.

Section 7 of the Charter – Excessive force

[23] Police officers are permitted to use as much force as is necessary for the purpose of making an arrest. The test is whether the application of force was objectively reasonable having regard to the circumstances and dangers in which the officer found herself (see R. v. Nasogaluak, 2007 ABCA 339).

[24] If force is justified, we do not expect officers to carefully measure out the exact amount of force the situation requires. We recognizes that in the exigencies of the moment police are not able to measure with exactitude the amount of force they are using. As was stated in Levesque v. Sudbury Regional Police Force, [1992] O.J. No. 512 (Gen. Div.), police officers may use “no more force than is necessary having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves”.

[25] The Supreme Court of Canada in R. v. Nasogaluak, supra, summarized the law on police use of force at paragraphs 34 and 35,

[34] Section 25(1) of the Criminal Code essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59). If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.

[35] Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

[26] The essence of the Section 7 argument made by Ms. Gray was that the police used excessive force during the course of the arrest and at the hospital. Crown counsel argued that any force used by the officers in this case was necessary. She further argued that even if Officer Paulini used more force than one would expect, she should be given some latitude in the amount of force used given the exigencies of the moment.

[27] It is my view that the amount of force used during the arrest itself was not excessive. I am aware that at times up to five officers were involved in the arrest, which I appreciate sounds excessive, but I have to take into account the entire circumstances. Ms. Gray was behaving erratically and was nonresponsive to the officers. She was carrying a sharp object – the paint scraper, and a heavy object – a metal brain sculpture. She had violently attacked the brain sculptures and was waiving her arms around in an agitated fashion. The officers waited patiently for an extended period of time before finally deciding to effect an arrest. When the officers moved towards Ms. Gray she fled. It was not unreasonable for five officers to follow Ms. Gray and carry out the arrest.

[28] The entire arrest was captured on video. It is evident to me that the officers used only as much force as was necessary to place Ms. Gray in handcuffs and then search her for weapons.

[29] I reach a different conclusion about the force used by Officer Paulini at the hospital. The video from Officer Jagdeo’s body worn camera shows exactly what took place at the hospital, including many of the words uttered by Officer Paulini and her tone of voice. On the video, Officer Paulini is clearly pushing Ms. Gray against a glass door multiple times. She pushed on Ms. Gray’s shoulder causing Ms. Gray’s head to hit the glass door beside her. Officer Paulini testified that every time she pushed Ms. Gray into the wall it was necessary to protect herself and others from Ms. Gray. While Ms. Gray did not actually spit on her, Officer Paulini testified that it looked and sounded like she was getting prepared to spit again. Officer Paulini testified that this force was necessary to protect herself and others and that she did not use a lot of force.

[30] I reject Officer Paulini’s evidence that she only pushed Ms. Gray against the wall to protect herself, other officers, and the public from Ms. Gray spitting on them. I also reject Officer Paulini’s evidence that she did not use a lot of force. I further reject her evidence that the second series of pushes was also to protect herself and others from Ms. Gray spitting again.

[31] I reach this conclusion about Officer Paulini’s evidence for a number of reasons. Firstly, I watched the video many times and had the chance to see exactly what was taking place. The first shove occurred when Ms. Gray was shaking her head so as avoid having the face shield placed on her. Her head was moving and given the officer’s location in relation to Ms. Gray and the movements, I do not accept that she could have “heard” Ms. Gray getting ready to spit, nor would she have had a good enough view to see from Ms. Gray’s face that she was getting ready to spit. In my view, this is an after the fact justification for the assault.

[32] Secondly, Officer Paulini is heard on the video yelling at Ms. Gray not to move. She did not say do not spit. She said “ do not move”. This utterance is more consistent with Officer Paulini’s actions being linked to the fact that Ms. Gray was not agreeing to have the face shield on as opposed to her getting ready to spit on the officer.

[33] Thirdly, while Officer Paulini did say “if you spit again on anyone of us you are going to have problems”, I do not view this as confirmatory that Ms. Gray was about to spit. It only confirms that Officer Paulini was angry about the first spit and that Ms. Gray was refusing to wear the face shield. This is consistent with Officer Paulini assaulting Ms. Gray out of anger as opposed to stopping the commission of an offence.

[34] Fourthly, Officer Paulini testified that when she told Ms. Gray “you are going to have problems”, she was referencing the fact that Ms. Gray would face additional charges if she committed another assault. I completely reject this evidence. If Officer Paulini truly meant that Ms. Gray would just face another charge, she would have said that. She is an officer, advising someone of a potential new charge is a key part of her job and not words that are difficult to come to mind in the heat of the moment. When I consider the words uttered, the tone of voice and the amount of physical force used, it is my view that when Officer Paulini said, “you are going to have problems”, she was threatening further violence on Ms. Gray.

[35] Even if Officer Paulini’s initial shove was to prevent Ms. Gray from spitting, there was a second, hard shove moments later that could not possibly have been to prevent Ms. Gray from spitting. On the video, Ms. Gray can be heard saying something to Officer Paulini immediately after the above noted threat. I cannot make out what words were uttered, but in response, Officer Paulini pulled Ms. Gray away from the wall by her shoulder and then pushed her hard back into the wall, swearing as she did so. This push, in my view, was done out of anger over what Ms. Gray just said to the officer. It could not possibly have been done for any other reason. Ms. Gray’s face was turned away from the officer and was pushed up against the glass wall when the officer pulled her back and then with substantial force pushed her back against the wall. I am fortified in my view that Officer Paulini was now acting out of anger alone, by her comments captured on the video to another officer after this series of pushes. I clearly hear officer Paulini on the video state to this other officer “that was angry me”.

[36] I note that this is not the end of the violence. Moments after expressing that this was “angry me”, Officer Paulini turned back around and shoved Ms. Gray into the same wall again. She then grabbed Ms. Gray’s fingers or hands that were cuffed together and started to twist them. Officer Paulini testified that she went back and pushed Ms. Gray’s shoulder and by extension her head against the wall to prevent Ms. Gray from spitting on them. When asked why she thought that Ms. Gray was going to spit again since her back was largely to Ms. Gray, Officer Paulini testified that she saw it through the corner of her eye. This is just not believable, and I reject this evidence. First, there were other officers with a better view of Ms. Gray than Officer Paulini, yet none of these officers reacted in anyway in that moment. If Ms. Gray was really about to spit again, other officers, who were looking in her direction would have reacted. Secondly, at this point in time, Officer Paulini was a few feet away from Ms. Gray and no one else seems to be near her. The act of violence by the officer in that moment was utterly unnecessary. In my view, the only reasonable inference is that Officer Paulini became enraged over what Ms. Gray was saying and pushed her again out of anger.

[37] The violence, sadly, did not end with this push. Officer Paulini continued to hold Ms. Gray’s shoulder and by extension her head firmly against the glass door even though Ms. Gray was not moving, was strapped into the stretcher and handcuffed from behind. Officer Paulini then, while still pushing Ms. Gray into the wall, grabbed Ms. Gray’s fingers and started to twist them. Officer Paulini testified that this was done solely to maintain control over Ms. Gray and that barely any force was used, less than what would be used in a handshake. I reject this evidence. First, Ms. Gray was already being controlled. She was cuffed and strapped to a gurney and was pushed up against a wall. She could not move. There was no need to start twisting her fingers. I further reject that the force used was less than a handshake. From the officer’s expression and the actions I see on the video, it looks like significantly more force than that was used. Moreover, Ms. Gray can be heard complaining that it hurts, and Ms. Gray testified that it hurt. I accept Ms. Gray’s evidence on this point.

[38] Having watched the video, and heard the evidence, it is my view that all the violence used by Officer Paulini was unnecessary and excessive. I further find that she acted out of anger at Ms. Gray for having spat on her fellow colleague and for continuing to be verbally abusive while they were in the hospital hallway. I am satisfied that Ms. Gray has met her burden and proven not just on a balance of probabilities, but beyond any doubt that officer Paulini used excessive force when she shoved Ms. Gray’s head into the glass wall several times and twisted her fingers. I further find that there was substantial interference with Ms. Gray’s physical and psychological integrity by Officer Paulini’s actions which brings this case under the ambit of section 7 of the Charter. I therefore find a Charter breach.

Remedy Section 24(1) of the Charter

[39] Pursuant to section 24(1) of the Charter, as a remedy for a Charter breach, a court can impose any remedy that the court deems appropriate and just in the circumstances. A stay of proceeding can be an appropriate and just remedy, but it is the most drastic remedy. The Supreme Court of Canada has consistently stated that a Stay of Proceedings is a remedy that should only be resorted to in the clearest of cases given society’s interest in having matters tried on their merits. In R. v. Babos, [2014] S.C.C. 16, the Supreme Court of Canada summarized the relevant legal principles as they relate to a stay of proceedings:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para 54).

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”.

[40] Where, as in the case at bar, there is no issue about trial fairness, the question is whether the state has engaged in conduct that is “offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system (R. v. Babos, supra, at para 35, R. v. Somerville, [2017] ONSC 3311 at para 115).

[41] As noted in R. v. Somerville, supra, at the second stage the question is whether a remedy short of a stay of proceedings is capable of redressing the prejudice. At the third stage, the court must assess whether “the integrity of the administration of justice is better protected by a stay or by a trial, despite the impugned conduct”. (R. v. Somerville, supra, at paragraph 118).

[42] In relation to the appropriate remedy in this case, I note that this is not a case where trial fairness is impacted by the breach. Ms. Gray is relying on the impact of the police conduct on the integrity of the justice system. The focus then is on whether a remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned conduct.

[43] The first question I must consider is whether the conduct of the police as so offensive to societal norms of fair play and decency that proceeding to trial would be harmful to the integrity of the justice system. In my view it would. In the case at bar, a mentally ill offender was assaulted multiple times by an officer while she was already handcuffed and strapped down while a number of other officers stood by watching. The officer’s conduct was motivated by anger. Violence by the police on offenders is unacceptable. Violence by officers on a person who is strapped down and cuffed while on a stretcher is even more offensive. In my view this kind of police abuse undermines the public confidence in our justice system.

[44] I appreciate that Ms. Gray was difficult, and she was verbally abusive to Officer Paulini, but this does not excuse the amount of violence Officer Paulini used on an offender who was physically incapable of moving as she was strapped down and cuffed.

[45] The next question I must ask myself is whether there is another remedy short of a stay of proceedings that would redress the prejudice to the justice system caused by the assault on Ms. Gray. Crown counsel, relying on R. v. Nasogaluak, 2010 SCC 6, argued that the appropriate remedy is a sentence reduction. In R. v. Nasogaluak, the Supreme Court of Canada upheld the imposition of a sentencing reduction as a valid remedy under section 24(1) of the Charter. In that case, Mr. Nasogaluak was severely injured by police during the course of his arrest. Mr. Nasogaluak had resisted arrest and during the course of arresting him, officers punched him in the head three times and in the back twice causing his ribs to break and a punctured lung. The court, however, was not asked whether a stay would be an appropriate remedy. Instead, it assessed whether in the circumstances of that case, a sentence reduction was appropriate. Moreover, the facts in Nasogaluak are very different from the facts of this case. While Mr. Nasogaluak suffered extreme injuries, the struggle with police began when Mr. Nasogaluak resisted arrest. In the case at bar, Ms. Gray was immobilized in a stretcher at hospital, cuffed and strapped down when she was assaulted by Officer Paulini. Moreover, she was clearly suffering from a mental health issue. The security guard from City Hall immediately was concerned that Ms. Gray was in crisis and her conduct at Nathan Phillips Square was sufficiently erratic to cause anyone to be concerned about her mental health. The breach is further aggravated by the fact that other officers were present and did not interject and stop the violence.

[46] In my view, given the aggravating circumstances surrounding the violence used by Officer Paulini on Ms. Gray, a sentence reduction is not an adequate remedy. It does not repair the harm done to the administration of justice in this case. The only way to address the overall harm caused by an officer assaulting an offender who is strapped down and cuffed is to distance itself from the egregious police conduct by staying the proceedings. A sentence reduction, given the nature of the charges Ms. Gray is facing, does not adequately address the Charter breach. There is no remedy short of a stay of proceedings that can adequately redress the prejudice arising from the police conduct in this case.

[47] I further find that when I balance the interests in favour of granting a stay in this case against the interest that society has in having a trial on the merits in this case, I am satisfied that given the nature of the police conduct, the need to denounce this behaviour far outweighs society’s need for a trial on the merits. The only way to preserve the integrity of the justice system in this case is to stay the charges.

[48] I am satisfied that this is one of the clearest of cases for the granting of a stay of proceedings. The charges against Ms. Gray are therefore stayed.

Released December 19, 2022

Justice Mara Greene